This article has been saved to your Favorites!

Texas Judge Wary Of Hospital Staff's Vaccine Policy Challenge

By Michelle Casady · June 11, 2021, 9:26 PM EDT

Houston - A Texas federal judge showed deep skepticism on Friday of claims that a Houston hospital was unduly coercing staff to be vaccinated for COVID-19, during a hearing on the hospital's bid to dismiss the policy challenge.

An attorney representing 116 employees of Houston Methodist Hospital who have refused the vaccine, Jared Woodfill of Woodfill Law Firm PC, told U.S. District Judge Lynn N. Hughes during the hearing that his clients were being unlawfully coerced by the hospital.

"If you say to someone, 'You're fired if you don't' … that's coercion or at the very least undo influence," Woodfill said.

Judge Hughes was unmoved.

"Counsel, no," the judge said, adding that the vaccine requirement was more akin to making employees show up on time.

Woodfill also told the court several times that the vaccine is experimental, hasn't received Food and Drug Administration approval and is only being administered currently under the agency's emergency use authorization powers.

Judge Hughes continually pushed back on that argument, saying the vaccine "is not an experiment" and that even FDA-approved drugs "are not guaranteed."

Woodfill repeatedly referenced statistics from the Vaccine Adverse Event Reporting System, which he said shows more than 5,100 people have died after receiving the vaccine. Judge Hughes told Woodfill he wouldn't be relying on that data.

"Don't go read Marvel Comics and then come and tell me there's a new way to handle this," he said in rejecting the VAERS data.

Judge Hughes has ordered expedited and truncated briefing in the lawsuit, which was removed to federal court on June 1, and told the parties after Friday's in-person hearing that he would be issuing a ruling Sunday or Monday.

Led by Jennifer Bridges, about 116 employees of Houston Methodist system filed suit in late May alleging they were either fired or were in imminent danger of being fired because they refused to take "an experimental vaccine." The workers said the hospital is "forcing its employees to be human 'guinea pigs' as the condition for continued employment," and argued that an emergency use authorization isn't the same as FDA approval.

Houston Methodist's attorney, Daniel Patton of Scott Patton PC, told the court that the plaintiffs' claims fail "as a matter of law."

"These people have a choice," he said. "Choose to get it, or go find other employment in the largest medical center in the world."

Citing the Nuremberg Code of 1947 — a medical ethics doctrine established in the aftermath of World War II that prohibits medical experimentation on people who didn't consent to participating — the employees argued they can't be forced to partake in a vaccine trial.

But Judge Hughes said the hospital staff plaintiffs in this case are attempting to exercise "a luxury they don't have."

"They're there to do what the hospital says," he said. "Not to establish their bona fides."

On June 4, Judge Hughes denied the workers' request for a temporary restraining order that would have blocked the hospital from enforcing its policy for the time being. If workers are fired for not adhering to the vaccine policy, they can sue for wrongful termination and seek to obtain money damages, the judge said, and explained that a TRO would "disserve the public interest."

In its motion to dismiss, Houston Methodist told the court that the plaintiffs in this suit weren't asked to commit an illegal act, a prerequisite for the type of wrongful termination claim they are asserting. The hospital also pointed to recently released guidance from the U.S. Equal Employment Opportunity Commission that employers can legally impose a COVID-19 vaccine mandate so long as they consider potentially exempting those with valid religious or medical reasons for not getting it.

At the end of Friday's hearing, which lasted about 80 minutes, Judge Hughes told the court that doctors are "highly educated, intensely trained, seriously committed to medicine," but that he doesn't believe the plaintiffs in this case are "invoking the same standards."

"And they don't have to," he said. "But it's likely to reflect poorly on people who had nothing to do with it."

The plaintiffs are represented by Jared R. Woodfill of Woodfill Law Firm PC.

Houston Methodist is represented by Daniel F. Patton, Andrew Paul Barber and Michael W. Twomey of Scott Patton PC.

The case is Bridges et al., v. Houston Methodist Hospital et al., case number 4:21-cv-01774, in the U.S. District Court for the Southern District of Texas.

--Additional reporting by Vin Gurrieri. Editing by Nicole Bleier.

For a reprint of this article, please contact reprints@law360.com.