Lenore Kagen v. Richard J Kagen ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
LENORE KAGEN a.k.a. LENORE GAURINO, UNPUBLISHED
July 14, 2015
Plaintiff-Appellee,
v No. 318459
Oakland Circuit Court
RICHARD J. KAGEN, LC No. 2010-779424-DM
Defendant-Appellant.
AFTER REMAND
Before: O’CONNELL, P.J., and BORRELLO and GLEICHER, JJ.
PER CURIAM.
We previously remanded this matter to the circuit court for reconsideration of whether
securing vaccinations for the parties’ minor children was in the children’s best interests. Kagen v
Kagen, unpublished opinion per curiam of the Court of Appeals, issued December 18, 2014
(Docket No. 318459) (Kagen I). Our opinion described in considerable detail the circuit court’s
several legal errors and clearly erroneous factual findings. At its conclusion, we set forth a
course of action to be undertaken on remand.
We first directed the circuit court to verify that the vaccination decision would not affect
the children’s established custodial environment. The court complied. Next, we instructed that
Mr. Kagen needed to present only an evidentiary preponderance to prove that updating the
children’s vaccinations would serve their best interests. Because the circuit court had not
previously considered on the record the statutory best-interest factors of MCL 722.23 as required
by binding precedent of this Court and our Supreme Court, we directed the court to identify and
apply all relevant factors. We also clarified for the circuit court the evidentiary principles
governing the admissibility of vaccine-related evidence.
On remand, the circuit court again determined that Mr. Kagen had not met his burden of
proving that vaccination was in the children’s best interests. Unfortunately, the circuit court
rested its decision on patently inadmissible evidence. Because the admissible evidence before
the court established by more than a preponderance that updating the children’s standard
vaccinations would be in their best interests, we reverse and remand for entry of an order
consistent with this opinion.
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I. EVIDENTIARY ERROR
In our prior opinion, we held that the circuit court erred by excluding Mr. Kagen’s
proffered reports from the Center for Disease Control (CDC), National Institute of Health (NIH),
Food and Drug Administration (FDA), and Michigan Department of Community Health
(MDCH). Although hearsay, these reports were admissible under the catch-all exception of
MRE 803(24). Vital to our decision was that “[a]ll four reports are official (formal) statements
by government agencies.” Kagen I, unpub op at 5. That the reports were prepared in the
declarants’ official capacities and were presented in a public forum assured that the declarants
had verified the accuracy of the information before its dissemination. Id. at 5-6.
On remand, the circuit court allowed Mrs. Kagen equal opportunity to present rebuttal
evidence. This was the correct course of action. However, the circuit court completely
abandoned its duty to assess the admissibility of the evidence. The circuit court accurately
recited the four elements outlined in People v Katt, 468 Mich 272, 290; 662 NW2d 12 (2003),
underlying admissibility pursuant to MRE 803(24): “To be admitted under MRE 803(24), a
hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent
to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative
evidence of that fact reasonably available, and (4) serve the interests of justice by its admission.”
However, the circuit court failed to consider in any meaningful way whether Mrs. Kagen’s
proffered evidence met these requirements.
In Katt, 468 Mich at 291 n 11, our Supreme Court quoted with approval various factors
that federal courts have adopted in analyzing a statement’s trustworthiness. Of particular
relevance here are the following factors:
(3) The personal truthfulness of the declarant. If the declarant is an untruthful
person, this cuts against admissibility, while an unimpeachable character for
veracity cuts in favor of admitting the statement. The government cannot
seriously argue that the trust due an isolated statement should not be colored by
compelling evidence of the lack of credibility of its source: although a checkout
aisle tabloid might contain unvarnished truth, even a devotee would do well to
view its claims with a measure of skepticism.
(4) Whether the declarant appeared to carefully consider his statement.
***
(8) Whether the declarant had personal knowledge of the event or condition
described.
***
(11) Whether the statement was made under formal circumstances or pursuant to
formal duties, such that the declarant would have been likely to consider the
accuracy of the statement when making it.
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In relation to several pieces of Mrs. Kagen’s evidence, the court bypassed its duty to consider the
document’s trustworthiness, a prerequisite to admissibility, reasoning that such considerations
affected only the weight of the evidence. This was error. We need not remand to give the circuit
court a third chance, however, as the record permits only one resolution of the issue presented.
We first note that the court admitted an article presented on a website managed by the
United States Department of Health and Human Services (USDHHS), and another from the
CDC. In Kagen I, we discussed at length why such documents are admissible despite being
hearsay. Such reports “were prepared by experts in the field of child immunizations and were
based on scientific study,” we reasoned, and “it would impose an unreasonable burden to expect
[the party] to present the testimony of the government agents who compiled or prepared the
reports.” Kagen I, unpub op at 5. Accordingly, such reports produced by government agents are
“the most probative evidence of [a material] fact [that is] reasonably available.” See Katt, 468
Mich at 290. As noted, such formal reports are also reliable as required under the first Katt
factor as they are created by individuals in their official capacities and for public dissemination,
invoking a special duty to ensure accuracy. Kagen I, unpub op at 5-6. Accordingly, we need
look no further to conclude that the circuit court properly admitted these documents presented by
Mrs. Kagen.
However, the circuit court also admitted several documents bearing absolutely no indicia
of reliability. We will address each document in turn, reviewing de novo the preliminary
question of whether an evidentiary rule precludes admission of the proffered document. People
v Gursky, 486 Mich 596, 606; 786 NW2d 579 (2010).
A. WIKIPEDIA.COM
Mrs. Kagen presented a list of vaccine ingredients from Wikipedia.com. Mr. Kagen’s
counsel objected to the admission of this document based “on the substance of the proposed
exhibit” and the failure to “identify any author or the source of the information.” The court ruled
that Mr. Kagen’s objections went “to weight rather than admissibility.” Considering the
trustworthiness of a document cannot be punted when analyzing admissibility under MRE
803(24). And documents from Wikipedia.com are not inherently trustworthy.1 The site
1
See, e.g., Badasa v Mukasey, 540 F3d 909, 910 (CA 8, 2008); Bing Shun Li v Holder, 400 Fed
Appx 854, 857 (CA 5, 2010) (“We agree with those courts that have found Wikipedia to be an
unreliable source of information.”); United States v Lawson, 677 F3d 629, 650 (CA 4, 2012)
(“Given the open-access nature of Wikipedia, the danger in relying on a Wikipedia entry is
obvious and real. As the “About Wikipedia” material aptly observes, “[a]llowing any-one to edit
Wikipedia means that it is more easily vandalized or susceptible to unchecked information.”
Further, Wikipedia aptly recognizes that it “is written largely by amateurs.”); Johnson v Colvin,
unpublished opinion of the United States District Court for District of Maine, decided September
25, 2014 (Docket No. 1:13-cv-406-DBH) (“Counsel are reminded that this court has not
accepted Wikipedia as a reliable medical reference.”); Smartphone Techs LLC v Research in
Motion Corp, unpublished opinion of the United States District Court for the Eastern District of
Texas, filed February 13, 2012 (Docket No. 6:10-CV-74-LED-JDL) (citations omitted) (“The
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advertises itself as “the free encyclopedia that anyone can edit.” See
(accessed July 1, 2015) (emphasis added). We
cannot fathom that a document containing content that can be altered by anyone at any time
could possibly “demonstrate circumstantial guarantees of trustworthiness.” Katt, 468 Mich at
290. Accordingly, the circuit court erred in admitting this evidence.
B. MICKEY AND MINNIE MOUSE
Mrs. Kagen presented an article entitled Should Mickey and Minnie Mouse Be
Vaccinated? from Dr. Brownstein’s Holistic Medicine Blog, February 2, 2015,
(accessed
July 1, 2015). Mr. Kagen’s counsel objected to the admission of this document because “it does
not relate to any immunology study or any vaccination study whatsoever.” Rather, counsel
argued, the article gave the writer’s “personal opinion about the effects of vaccinations, but
doesn’t back it up with any studies whatsoever.” The author of the “Holistic Medicine Blog”
expressed his views that the CDC “is committing fraud, and . . . needs to be investigated.”
Counsel described the website as an “advertisement” vehicle for a “for-profit business.” The
content on this website is provided by volunteers from around the world—anyone with internet
access can provide or modify content. Thus, not only is the information unreliable, but it can
potentially change on a day-to-day basis.”).
As described in great detail in Campbell v Secretary of Health & Human Servs, 69 Fed Cl
775, 781 (2006):
The articles that the Special Master culled from the Internet do not—at
least on their face—remotely meet this reliability requirement. Consider the item
on “febrile seizures” that she added from the Dictionary of Neurology,
www.explore-medicine.com. Although that website no longer exists, the exhibit
introduced by the Special Master indicates that its information was drawn from
Wikipedia.com, a website that allows virtually anyone to upload an article into
what is essentially a free, online encyclopedia. A review of the Wikipedia website
reveals a pervasive and, for our purposes, disturbing series of disclaimers, among
them, that: (i) any given Wikipedia article “may be, at any given moment, in a bad
state: for example it could be in the middle of a large edit or it could have been
recently vandalized;” (ii) Wikipedia articles are “also subject to remarkable
oversights and omissions;” (iii) “Wikipedia articles (or series of related articles)
are liable to be incomplete in ways that would be less usual in a more tightly
controlled reference work;” (iv) “another problem with a lot of content on
Wikipedia is that many contributors do not cite their sources, something that
makes it hard for the reader to judge the credibility of what is written;” and (v)
“many articles commence their lives as partisan drafts” and may be “caught up in
a heavily unbalanced viewpoint.”
While none of these sources bind this Court, we find their content instructive and persuasive.
See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004); Paris Meadows, LLC
v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010).
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court admitted, “I don’t know the Center for Holistic Medicine” and asked Mrs. Kagen to
explain the organization. Mrs. Kagen confessed, “Honestly, I don’t know that much. . . . I can
only read stuff and I don’t know who is reputable, who is not.” The court overruled Mr. Kagen’s
objection, again concluding that his concerns went “to weight rather than admissibility.”
A blog by its very nature is not akin to a formal and official statement presented by a
government agency. A blog is a “[w]eb site that contains online personal reflections, comments,
and often hyperlinks provided by the writer.” Merriam-Webster’s Collegiate Dictionary (11th
ed), p 133. As described by this Court in Ghanam v Does, 303 Mich App 522, 547; 845 NW2d
128 (2014) (quotation marks and citation omitted):
Ranked in terms of reliability, there is a spectrum of sources on the internet. For
example, chat rooms and blogs are generally not as reliable as the Wall Street
Journal Online. Blogs and chat rooms tend to be vehicles for the expression of
opinions; by their very nature, they are not a source of facts or data upon which a
reasonable person would rely.
Dr. Brownstein is a Michigan licensed physician, (accessed July 1, 2015), and purports to be a board-certified family
physician, (accessed July 1, 2015). However,
nothing about the particular blog article supports its trustworthiness. The article is a reaction to
the outcry following the Disneyland measles outbreak. It includes a chart outlining deaths from
diphtheria, pertussis, and measles before and after the widespread use of vaccinations derived
from a source called www.healthsentinel.com. The article discusses “[a] scientific review from
Dr. Helen Ratajczak,” but references only an article regarding Ratajczak from CBS News. Dr.
Ratajczak’s actual study may have been a useful tool in analyzing the parties’ debate. However,
an article from a doctor unconnected to any scientific study does not share the characteristics of
trustworthiness necessary to be admitted under MRE 803(24).
C. SNOPES.COM
Mrs. Kagen also introduced an article entitled On Gardasil from Snopes.com. See
(accessed July 1, 2015). Mrs. Kagen
admitted that she was uncertain whether the information in the article was from a scientific
study. Rather, she visited the website on the recommendation of “a doctor friend of mine.” The
circuit court appeared to be unfamiliar with the website and Mr. Kagen attempted to educate the
court on its dubious nature, but the court interrupted him. Ultimately, the court found that the
content of the article did not actually support Mrs. Kagen’s position, but that it was admissible.
The court should have allowed Mr. Kagen to continue in his explanation. Snopes.com is
a website that “has come to be regarded as an online touchstone of rumor research.” See
(accessed July 1, 2015). The site touts: “Welcome
to snopes.com, the definitive Internet reference source for urban legends, folklore, myths,
rumors, and misinformation.” (accessed July 1, 2015). The
website’s purpose is to conduct research to verify or disprove claims made on the Internet or
rumors being spread through society. There is no indication that the vaccination article proffered
by Mrs. Kagen was compiled by someone with any medical knowledge. Accordingly, we
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discern no method to verify the article’s trustworthiness, and the circuit court should have
excluded it.
D. HEALTH IMPACT NEWS
Mrs. Kagen introduced an article by John P. Thomas titled Moulden—A Search for Life
and Truth, Health Impact News, (accessed July 1, 2015). Mrs. Kagen testified that she visited this
website on the recommendation of “a well known chiropractor who helps athletes with all kinds
of medical problems.” In relation to “Health Impact News,” Mrs. Kagen argued, “Every doctor
I’ve talked to who remotely thinks about what you’re putting into your body has recommended
the site[.]”
The article purports to present scientific evidence uncovered by Dr. Andrew Moulden
regarding the dangers of vaccinations. It is not a direct account of Dr. Moulden’s research and
there is no indication that the author is a physician or has any medical training. Rather, the
article reads like a tabloid story of the late doctor’s persecution at the hands of vaccine
advocates. The article suggests that the pharmaceutical industry assassinated the doctor and
thereafter “eras[ed] most all of the information that was once available on the internet” about the
doctor’s teachings. Id. The writer even challenges the “germ model of disease.” Id. As noted
by Mr. Kagen’s counsel:
[T]here’s no studies -- there’s no scientific studies; it’s all conjecture, it’s all
based upon speculation, it’s based upon rumor, it’s based upon fear mongering,
it’s based on their wanting to sell products to the public.
The circuit court overruled Mr. Kagen’s objection, again finding that his challenge went
to weight rather than admissibility. Again, the court committed legal error, as this web article
was clearly inadmissible hearsay. The article demonstrates no “circumstantial guarantees of
trustworthiness” as required by Katt, 468 Mich at 290, particularly given the article’s tone. See
id. at 291 n 11 [factor (3)]. No portion of the article suggests that the writer conducted any
studies to establish “personal knowledge” of the claims made. See id. at 291 n 11 [factor (8)].
And the article’s statements certainly were not “made under formal circumstances or pursuant to
formal duties, such that the declarant would have been likely to consider the accuracy of the
statement when making it.” See id. at 291 n 11 [factor (11)]. The admission of this article, even
if given negligible weight by the court, contravened the rules of evidence.
E. YET ANOTHER PHYSICIAN’S PERSONAL WEBSITE
Mrs. Kagen presented Dr. Russell L. Blaylock, Vaccination Dangers Can Kill You or
Ruin Your Life, May 12, 2014, (accessed July 1, 2015). She indicated that her doctor
recommended the article and described, “I don’t think he’s making this up - - how the - - how the
brain reacts to things that we inject into our body.” The court noted that the author is “a board
certified neurosurgeon.” That claim is supported by the doctor’s personal website. See
(accessed July 1, 2015). Dr. Blaylock was, in fact, a
licensed doctor until his retirement from practice in 2006. See
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(accessed July 1, 2015). The court noted that it would review
the article by Dr. Blaylock because of his qualifications and references to studies, but that it
would not consider any other information from the website.
Dr. Blaylock’s website references neither scientific research nor peer-reviewed medical
literature. Rather, the information contained in the article advances Dr. Blaylock’s personal
opinion that “the policy of giving numerous vaccinations to individuals, especially infants and
small children, is shear [sic] idiocy.” The website bears none of the requisite indicia of
trustworthiness set forth in Katt. Moreover, the record lacks any evidence that Dr. Blaylock’s
credentials as a neurosurgeon would qualify him to render opinion testimony regarding the
subjects of his website, including infectious diseases and immunology. We emphasize that the
catch-all exception to the hearsay rule does not open the door to the introduction of anything a
physician has to say. The other evidentiary rules governing the introduction of expert testimony
(MRE 702, MRE 703 and MRE 707) make it plain that in the absence of an adequate foundation,
an expert opinion lacks reliability. Mrs. Kagen brought forth no information supporting the
reliability of Dr. Blaylock’s website, and the circuit court erred by considering it for any purpose.
F. WAVE
The last document presented by Mrs. Kagen concerns the HPV vaccination, and was
posted on the World Association for Vaccine Education (WAVE) website.
(accessed July 1,
2015). The circuit court completely failed to address this document at the hearing and made no
record consideration of the document’s admissibility in its written opinion and order. The
document includes quotations from a CDC Genital HPV Infection Facts Sheet. It names doctors
that have conducted studies, but does not provide references to those studies. The website also
gives detailed information about the ingredients and other information related to Merck’s
Gardasil vaccine.
As the document was not addressed at the hearing, the circuit court did not question Mrs.
Kagen regarding her knowledge of the organization. From its website, we discern that WAVE is
not affiliated with a public or governmental institution:
The World Association for Vaccine Education (WAVE) is globally focused, non-
profit, educational institution advocating reformation of the mass vaccination
systems. To this effect, WAVE provides an avenue for a public exchange of non-
medical vaccine information, ideas and a continuously updated database of
documents that concern vaccine risk and uselessness. It’s intent is to redress the
balance of information available to parents on vaccination issues, acknowledge
people who experience vaccine reactions, and adamantly advocate and maintain
freedom of choice. [Id.]
We have no ground to deem the document trustworthy and cannot affirm the circuit court’s
admission of it.
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Ultimately, the court acted within its discretion in admitting the CDC and USDHHS
information. However, the remaining six items proffered by Mrs. Kagen were patently
inadmissible and the court committed serious legal error in considering them.
II. ANALYTICAL ERRORS
In Kagen I, unpub op at 3, we described that a circuit court must evaluate each best-
interest factor of MCL 722.23 deemed relevant to the particular issue in dispute. “[T]he court
must ‘make substantive factual findings.’ ” Id., quoting Pierron v Pierron, 486 Mich 81, 91; 782
NW2d 480 (2010). We, in turn, must affirm the circuit court’s decision “unless the trial judge
made findings of fact against the great weight of the evidence,” meaning that “the factual
determination clearly preponderates in the opposite direction.” Pierron, 486 Mich at 85(quotation marks and citations omitted).
The circuit court correctly identified the best-interest factors relevant to its analysis: MCL
722.23(c) and (l). Under these factors, the court must consider:
(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
***
(l) Any other factor considered by the court to be relevant to a particular child
custody dispute.
As aptly noted by the court, “both parties are amply equipped to provide medical care to
the minors, but differ philosophically as to what care to administer.” (Emphasis in original.)
The circuit court asserted that “both parties presented ample evidence as to the respective pros
and cons of vaccinations and inoculations in general” but erred in concluding that “neither party
presented evidence as to what specific vacations or inoculations are medically recommended, or
not, for each respective minor.”
The parties provided relatively equal amounts of information regarding the safety of
vaccinations, although the volume of admissible evidence presented by Mr. Kagen surpassed that
of Mrs. Kagen. Mr. Kagen presented information from the CDC regarding vaccine safety,
recommendations, and side effects and risks, as well as debunking the vaccine-autism connection
theory. The CDC-generated information included a list of studies conducted to examine the
vaccine-autism connection. Mr. Kagen provided information from the FDA regarding the “types
of vaccines that are routinely given to children,” and the specific vaccinations (along with brand
names) that are given on a regular basis. The FDA document included a description of the risks
and benefits of the vaccines, common side effects, and conditions which contraindicate
vaccination. Mr. Kagen’s evidence from the NIH’s National Center for Complementary and
Alternative Medicine indicates that the agency “is the Federal Government’s lead agency for
scientific research on the diverse medical and health care systems, practices, and products that
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are not generally considered part of conventional medicine.” See
(accessed July 1, 2015).2 The documents presented included several links to scientific literature
and studies from well-known and respected sources and indicated that “[t]he value and safety of
vaccinating children against dangerous illnesses cannot be overstated.” Mr. Kagen provided a
print-out from the MDCH website with hyperlinks to studies regarding vaccination safety.
Mrs. Kagen presented two admissible documents relevant to the debate, which presented
duplicative information. The first is a document from vaccines.gov. The website “is the federal
gateway to information on vaccines and immunizations” and is controlled by the National
Vaccine Program Office within the USDHHS. (accessed
July 1, 2015). Mrs. Kagen specifically presented a list of possible side effects from various
vaccinations. The document cautions:
Any vaccine can cause side effects. For the most part these are minor (for
example, a sore arm or low-grade fever) and go away within a few days. Listed
below are vaccines licensed in the United States and side effects that have been
associated with each of them. This information is copied directly from CDC’s
Vaccine Information Statements, which in turn are derived from the Advisory
Committee on Immunization Practices (ACIP) recommendations for each
vaccine.
Remember, vaccines are continually monitored for safety, and like any
medication, vaccines can cause side effects. However, a decision not to immunize
a child also involves risk and could put the child and others who come into
contact with him or her at risk of contracting a potentially deadly disease.
[ (emphasis in original)
(accessed July 1, 2015).]
Mrs. Kagen presented a substantively identical document, which opened with the exact quote as
her first source, from the CDC.
(accessed July 1, 2015). These studies did reveal that some severe reactions had occurred
following childhood vaccinations. For example, the DTaP (diphtheria, tetanus, acellular
pertussis) vaccination had caused serious allergic reactions “in less than 1 out of a million
doses.” Seizures, coma, lowered consciousness, and permanent brain damage had also been
reported but these reactions “are so rare it is hard to tell if they are caused by the vaccine.” Id.These documents, while warning readers of the potential risks associated with vaccinations,
reveal that severe and even moderate risks are rare and far outweighed by vaccine benefits.
A review of the parties’ evidence clearly supports that vaccination of children is in their
best interests, unless the child’s medical condition contraindicates vaccination. The reports
generated after public-agency research and investigation, including those presented by Mrs.
Kagen, establish that the benefits associated with vaccination far outweigh any dangers. The
2
The agency has since been renamed the National Center for Complementary and Integrative
Health.
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USDHHS and CDC documents advise that vaccine side effects are “[f]or the most part . . .
minor” and caution that “a decision not to immunize a child . . . could put the child and others
who come into contact with him or her at risk of contracting a potentially dangerous disease.”
We previously discussed the extreme rarity of “severe problems” arising from DTaP vaccination.
Similarly, severe reactions to the MMR vaccination (measles, mumps, and rubella), such as
deafness, brain damage, and coma, “are so rare that it is hard to tell whether they are caused by
the vaccine.” In relation to the Hepatitis B vaccination, the agencies describe that “[m]ore than
100 million people in the United States have been vaccinated” and “[s]evere allergic reactions
were limited to one in 1.1 million doses.” Other potential dangers noted by the agencies are
irrelevant to the current case as they impact only young children. For example, the studies
indicated that young children receiving the seasonal unactivated flu vaccine at the same time as
receiving a pneumococcal vaccine “may be at an increased risk for seizures caused by fevers.”
See (emphasis in original) (accessed June
22, 2015); (accessed July 1, 2015).
Mrs. Kagen also expressed concern over impacts on the brain caused by vaccination. The
article by Dr. Blaylock explains his theory regarding this causation mechanism. Even were it
admissible, the article mentions no particular damage to older children receiving vaccinations.
Mr. Kagen’s evidence, on the other hand, includes several studies disproving the link between
vaccinations and autism.
As to information specific to each child, the court expressed that she repeatedly asked the
parties to present testimony from the children’s pediatrician regarding “what vaccinations have
already been administered, what specific vaccinations are recommended for each minor, and,
whether administering vaccinations the minors have yet to receive is medically in their best,
individual, interests.”
Although the court had requested the parties to present the testimony of the children’s
pediatrician, Dr. Shah, the court ended the hearing by stating her intent to issue a subpoena. The
court then failed to do so. In its written opinion and order, the court contended that it
“abandoned pursuit of a sua sponte subpoena” after Mr. Kagen gave a news interview during
which he asserted that he would be calling Dr. Shah “to testify at the continued [hearing] date.”
This timeline is inaccurate. The court reviewed Mr. Kagen’s interview before the March 3, 2015
hearing, and only expressed an intent to sua sponte subpoena the doctor at the end of that
hearing. Therefore, it would have been impossible for the court to abandon the idea before the
hearing as stated in the opinion and order.
Moreover, contrary to the court’s assertion, Mr. Kagen did present evidence regarding the
vaccines the children had already received, at least in regard to the Kagens’ oldest daughter, AK.
At the original hearing before this Court’s remand, Mr. Kagen presented the vaccination waiver
forms Mrs. Kagen signed on AK’s behalf. Each form indicated which vaccinations were
recommended. As Mr. Kagen had taken AK to the health department for certain vaccinations
during these proceedings, he presented updated records from the pediatrician’s office. Those
records indicated “that vaccinations are overdue and should be administered today if not
medically contraindicated.”
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The court criticized Mr. Kagen’s general request to subject the children to “the standard
vaccinations.” This left
the court in a position to have to, essentially, guess which of the vaccinations and
commonly administered inoculations [Mr. Kagen] believes are “standard.” The
court opines that a “one-size-fits-all” approach to judicial implementation of a
course of medical treatment, i.e. implementation of adolescent vaccinations, is
illogical, dangerous, and squarely opposite of this court’s obligation in evaluating
what is, or is not, in any child’s best interests.
The court’s logic is confounding. The court acknowledged that some vaccinations are
“commonly administered” but failed to recognize that this is synonymous with “standard.” As
any parent can attest, pediatricians regularly give parents a list of the standard vaccinations along
with a schedule of when they should be administered. Mr. Kagen did present evidence
enumerating the standard vaccinations administered to children in the United States. The FDA
article lists these vaccinations. And the letter from the children’s pediatrician clearly enumerates
which vaccinations AK had yet to receive and were recommended specifically for her. The same
is true of the vaccination waiver forms earlier signed by Mrs. Kagen.3
While the court acknowledged that Mr. Kagen presented letters from the pediatrician’s
office indicating which vaccinations AK had yet to receive, the court noted that these letters
recommended that the vaccinations “should be administered today if not medically
contraindicated.” At the hearing, the court recognized the meaning of this phrase: “every
routinely administered vaccine for children that’s listed ends with tell your healthcare provider
beforehand if, and there are a number of things, if your child is ill, has swelling of the brain
within seven days, had a previous dose of the vaccine, has a neurologic disorder, such as
epilepsy, has had a reaction to a previous shot, et cetera.” Yet, when the court issued its opinion
and order, it seemed perplexed by the meaning of “medically contraindicated.” The court
reasoned:
As both parties’ evidence suggests, there is legitimate debate in the medical
community as to the safety and necessity of certain commonly administered
vaccinations. There was also not a scintilla of evidence presented to the court as
to whether vaccinations the minors have yet to receive would otherwise be
“medically contraindicated” for each child.
Ultimately, however, Mrs. Kagen never argued that the children had ever experienced an
allergic reaction to a vaccine. No evidence supports that either child has a compromised immune
system or a history of seizures counseling against the administration of vaccinations. Mrs.
Kagen was not concerned that the children’s health dictated against vaccination, but that
vaccinations would endanger the children in the ways described in the inadmissible websites.
The letter from the children’s pediatrician, Dr. Shah, recommended vaccinating the Kagen
3
The lower court record does not include medical documentation of the vaccinations received by
the parties’ younger daughter, JK.
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children. Had their medical conditions contraindicated vaccination, Dr. Shah would not have
signed the missives. This record contains no support whatsoever for the circuit court’s factual
finding that there exists in the medical community a “legitimate debate . . . as to the safety and
necessity” of the vaccines recommended for the Kagen children. Indeed, the evidence
overwhelmingly preponderates in the opposite direction. We therefore reverse the circuit court’s
order denying Mr. Kagen’s motion to update the children’s vaccinations.
To avoid prolonging this dispute, we direct the court to take specific actions on remand.
Mr. Kagen must request from the children’s pediatrician separate letters regarding each child.
Each letter must list: (1) the vaccinations the child has received, (2) the dates of inoculation, (3)
the vaccinations recommended at this time, and (4) the vaccinations recommended in the future.
Each letter should specifically state whether the administration of any vaccination is medically
contraindicated. If the vaccinations are not contraindicated, the letters should include an
affirmative statement to that effect.
The circuit court shall enter an order directing the pediatrician’s production of letters
consistent with this Court’s demand. In any event, Mr. Kagen must present these letters to the
circuit court within 21 days of the entry of this opinion. The circuit court is directed to enter an
order within 7 days of receiving those letters. The order must direct that the children be subject
to vaccinations in strict compliance with the pediatrician’s letters. The course of vaccination
must begin within 21 days of the entry of the circuit court’s order on remand.
We reverse and remand for further proceedings explicitly directed by this opinion. We
retain jurisdiction to ensure that the timeline outlined in this opinion is strictly followed. Upon
official notice from Mr. Kagen or his counsel that the course of vaccination has begun, this Court
will enter an order releasing jurisdiction.
/s/ Peter D. O'Connell
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
-12-
Court of Appeals, State of Michigan
ORDER
Peter D. O'Connell
Lenore Kagen v Richard J Kagen Presiding Judge
Docket No. 3 18459 Stephen L. Borrello
LC No. 2010-779424-DM Elizabeth L. Gleicher
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further
proceedings consistent with the opinion of this Court. We retain j urisdiction.
Proceedings on remand in this matter shall commence within 14 days of the Clerk 's certification
of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying
opinion, to avoid prolonging this dispute, we direct the court to take specific actions on remand. Mr. Kagen must
request from the children's pediatrician separate letters regarding each child. Each letter must list: ( I) the
vaccinations the child has received, (2) the dates of inoculation, (3) the vaccinations recommended at this time,
and (4) the vaccinations recommended in the future. Each letter should specifically state whether the
administration of any vacci nation is medically contraindicated. If the vaccinations are not contraindicated, the
letters should include an affirmative statement to that effect.
The circuit court shall enter an order directing the pediatrician's production of letters consistent
with this Court's demand. In any event, Mr. Kagen must present these letters to the circuit court within 2 1 days
of the entry of this opinion. The circuit court is directed to enter an order within 7 days of receiving those letters.
The order must direct that the children be subject to vaccinations in strict compliance with the pediatrician's
letters. The course of vaccination must begin within 2 1 days of the entry of the circuit court's order on remand.
The proceedings on remand are limited to this issue.
The parties shall promptly fil e with this Court a copy of all papers filed on remand. Withi n 7
days after entry, appellant shall fil e with this Court copies of all orders entered on remand .
The transcript of all proceedings on remand shall be prepared and filed within 2 1 days after
compl etion of the proceedings.
A true copy entered and certified by Jerome W. Zimmer Jr. , Chief C lerk . on
JUL 14 2015
Date