Anti-Mask Pa. Diner Tries To Cast Doubt On Virus Mitigation

By Matthew Santoni
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Law360 (January 27, 2021, 7:37 PM EST) -- Counsel for a bankrupt Pittsburgh-area restaurant being sued by the Allegheny County Health Department for refusing to follow Pennsylvania's mask mandates tried to raise doubts Wednesday over whether masks were effective at controlling the pandemic or if unmasked dining at restaurants posed greater risks of spreading COVID-19.

During an evidentiary hearing, James Cooney, representing The Crack'd Egg, questioned the chief epidemiologist at the health department on how conclusively the county's contact tracers had connected coronavirus cases to bars and restaurants. He also grilled LuAnn Brink, chief epidemiologist and deputy director for the health department, over whether there was a scientific consensus on the effectiveness of masks, social distancing and business closures in reducing the virus' spread.

"We agree that the county should enforce reasonable mitigation measures that have been scientifically proven, but we debate whether the COVID-19 mitigation measures are appropriate," he said during the opening statement of the multiday evidentiary hearing in state court that started on Wednesday.

The health department is asking the Allegheny County Court of Common Pleas to enforce its efforts to shut down The Crack'd Egg and its parent company The Cracked Egg LLC until it complies with state directives for customers and employees to wear face coverings when they aren't seated and eating, along with capacity limits between 25% and 50% of its normal occupancy. Judge John McVay had called the evidentiary hearing to weigh the county's request for an emergency injunction against the restaurant.

"No other facility in Allegheny County has so deliberately or for so long placed the public at risk of COVID-19," said Vijyalakshmi Patel, representing the health department, in her opening statement. "It chooses not to comply simply because it doesn't approve of the order or the science behind it."

The restaurant is contesting the validity of the state orders the county wants to enforce, and though its briefs have focused on whether the orders should have gone through the state legislature or a regulatory rulemaking process, much of Wednesday's questioning was directed toward whether masks work.

Cooney pressed Brink on if there was a significant disagreement in the scientific community over mask orders, pointing to guidance from the Centers for Disease Control and Prevention and the World Health Organization, and the county's own press releases from early in the pandemic that didn't emphasize masks. But Judge McVay cut in to note that he knew guidance had changed and evolved as the pandemic spread and was studied. Brink defended masks as preventing people with the virus — particularly those who were not showing symptoms yet — from spreading it via their breath, coughing, sneezing, talking, singing or yelling.

Cooney also asked Brink if she knew about the Great Barrington Declaration, a controversial proposal by the American Institute for Economic Research that advocated for lifting COVID-19-related restrictions for all but the most vulnerable people and letting the rest of the population develop "herd immunity."

"There's not a debate within the epidemiological community. I believe it's been biologically understood for hundreds of years that basic surgical masks prevent people from taking the bacteria and viruses in their mouths and projecting them into their environment," Brink said, pointing to studies in countries with greater mask adoption that found a sevenfold decrease in infections. "It's a barrier, like a sneeze guard on a salad bar. It makes biological sense to me."

Health department inspectors, acting on complaints that The Crack'd Egg had been operating without requiring employees or customers to wear masks or adhere to occupancy limits, had issued an order revoking the restaurant's health department permit to operate in August. But the business stayed open, testified Amanda Mator, operations manager for the department's food safety program.

The county sued in September, but the restaurant tried to remove the case to federal court and filed a countersuit over the constitutionality of the orders. The Cracked Egg LLC filed for Chapter 11 bankruptcy in October and remained open, but a bankruptcy court judge lifted the automatic stay on litigation for the county's enforcement lawsuit and remanded it to state court on Jan. 7.

Brink said the county's case investigators had traced 11 "outbreaks" of COVID-19 to bars, restaurants and catered events since the beginning of the pandemic, though under cross-examination from Cooney, she said none had been directly linked to The Crack'd Egg. A large number of coronavirus tests returned positive results during the summer, when Pennsylvania's restrictions were at their most relaxed and many people returned to bars and restaurants, Brink noted.

Restaurants posed a greater risk of spreading the coronavirus because patrons are going unmasked while eating and sitting in close proximity to one another, but orders limiting capacity and requiring face coverings for staff and patrons away from their tables represented a "compromise" to allow restaurants to partially reopen for in-person dining, Brink said.

Cooney asked if it was possible that patients were wrong about contracting the virus at bars and restaurants, and Brink admitted that there was no oath or affidavit that said their reports to the county's investigators were true. But she added that many people hung up on the county's investigators were unlikely to self-report if they were patronizing an establishment in open defiance of mitigation measures.

Judge McVay said testimony would continue on Thursday and Friday, though he encouraged the parties to trim down their list of multiple restaurant owners who had planned to speak.

The Allegheny County Health Department is represented in-house by Vijyalakshmi Patel, Michael Parker and Jeffrey Bailey.

The Cracked Egg LLC is represented by James R. Cooney, Robert O. Lampl, Sy O. Lampl, Alexander L. Holmquist and Ryan J. Cooney of Robert O. Lampl Law Office, and Dennis M. Blackwell of The Blackwell Law Firm.

The case is County of Allegheny v. The Cracked Egg LLC, case number GD-20-009809, in the Court of Common Pleas for Allegheny County, Pennsylvania.

--Editing by Steven Edelstone.

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